N.C. justices must see legislators as peoples' representatives, not their dictators

The North Carolina Constitution says:

“All political power is vested in and derived from the people.”

The State Constitution does not say a legislature with frequent elections is omnipotent, unanswerable to the other equal branches of the government – including the executive and judicial.

But that’s not how State Supreme Court Chief Justice Paul Newby sees it. He contends the legislature can act without question. He even challenges the basic requirement that elections must be fair.

“The legislative power is vested in the General Assembly because ‘all people are present there in the persons of their representatives,’ … therefore, the people act through the General Assembly. … The General Assembly primarily exercises the people's political power.”

Further on that point, Newby continues: “When the Constitution expressly assigns a task to a particular branch of government, the constitution prohibits the judicial branch from intruding into that task. Such intrusion violates separation of powers; the issue is nonjusticiable,” he wrote in a December 2022 opinion.

This all echoes the so-called “independent state legislature” theory that even the conservative U.S. Supreme Courtrejected this past June in a case brought by North Carolina’s legislative leaders.

"Since early in our nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts," U.S. Supreme Court Chief Justice John Roberts wrote. He added that even the namesake for Gerrymandering backed judicial review of legislative acts. “Elbridge Gerry, a delegate from Massachusetts, also spoke in favor of judicial review. … At the Convention, he noted that ‘[i]n some States the Judges had [actually] set aside laws as being agst. the Constitution.’ 1 id., at 97 (alteration in original by James Madison). Such judicial review, he noted, was met ‘with general approbation.’”

Newby knows well the influence of the legislature. One of the non-spending provision packed into the recent state budget bill was an increase in the mandatory retirement for state judges and justices from 72 to 76 years of age. Thanks to the leaders of the legislature, Newby will be able to seek re-election in 2028 when his current term ends – instead of being forced to retire with a year to go in his term.

Newby infamously questioned the fundamental notion that elections must be fair during a court in 2022. “We have ‘free.’ We don't have ‘fair,’” Newby said of the election requirements in the State Constitution.

It is logic built of partisan bias and convenience, not clear reasoning or common sense.

It is twisted logic that would allow legislators to exert unchecked power, rig election district lines to guarantee one political party a legislative majority that couldn’t be questioned as to their fairness. As long as they “claimed” they didn’t consider race, election mapmakers could move blocks of minority voters to suit their partisan objectives.

Such unquestioned power to manipulate election districts would guarantee the majority party legislative power for eternity. That is not representative or the voice of the people. It is a dictatorship.

A week ago a three-judge panel – two Republicans and a Democrat – unanimously ruled that a new law to give the legislative leaders power to make appointments to the State Elections Board, was likely an unconstitutional power-grab.

Newby should take heed of these three judges – ones he appointed to handle the challenge to the law -- and stand up for North Carolina’s constitution.

“The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other,” declares North Carolina’s Constitution.

It is not a hollow sentiment, but a fundamental statement of how a truly representative government in a democracy works. There is a system of checks and balances to assure that no single branch of government, no single leader – be they governors, state Senate leaders, speakers of the state House or chief justices of the state Supreme Court – rule without question.

That’s no convenient or cooked up “theory.” It is the rule of law.

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